HHJ Howells, Mold County Court, 29th Jan 2019

 

This was an appeal in a SIIIA case where the lower court had found exceptional circumstances and awarded costs under CPR 45.29J.  On appeal the court considered the swings and roundabouts nature of fixed costs, but found the lower court had correctly weighed all the relevant issues in the balance, and that decision could not be faulted.  

 

The claim arose from a personal injury accident at the Claimant's place of employment.  Liability was not disputed.  Initially the claim began relying on one medical report, but a subsequent report gave a much gloomier picture and indicated the Claimant had a permanent injury and would be disabled within the meaning of the Equality Act 2010.  The appeal court noted at [13] that the lower court's attention had been drawn to the extensive work carried out, with the solicitor correspondence running to some 63 pages with little padding, the schedule of special damages alone amounting to over £71,500 which was 27 pages long, a detailed Ogden 7 calculations for future loss of earnings, an alternative Billet approach with a witness statement from the Claimant running to 16 pages dealing in detail with the Claimant's pre-existing medical conditions, current conditions, education, employment, need for care and assistance - all of which was relevant to the future loss of earnings and Ogden/Billet calculations.  

 

At [17-18] the court considered Hislop v Perde, and noted how LJ Coulson had 'uncoupled' the link between the causation of increased costs and the  award of exceptional circumstances costs there.  

 

HHJ Howells noted that the lower court had taken all the relevant factors into account, particularly the permanent disability and the Ogden calculations, but also the value of the claim, and concluded they were appropriate factors for the court to consider made this case exceptional for the test in CPR 45.29J.  The appeal was dismissed and the Claimant kept their award of open costs.

 

This case is unusual in that it is one of only two cases (the other being Jackson v Barfoot Farms) I am aware of where non-fixed costs have been awarded under CPR 45.29J.  In both cases, the Claimant suffered significant and permanent injuries.

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